TRAN (Migration)

[2017] AATA 2107

TRAN (Migration) [2017] AATA 2107 (25 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Hai Van TRAN
Mr Thanh An NGUYEN

CASE NUMBER:  1705511

DIBP REFERENCE(S):  BCC2016/4313861

MEMBER:Wan Shum

DATE:25 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

Statement made on 25 October 2017 at 10:06am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – Australian study requirement satisfied in period 6 months before application made – Degree, diploma or trade qualification closely related to applicant's nominated skilled occupation

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, r 1.15F, r 2.26AC(6), Schedule 2, cl 485.111, cl 485.221, cl 485.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 March 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 December 2016. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas finding that the qualification completed by the first named applicant (the applicant) within the 6 month period did not meet the Australian study requirement. The delegate found that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations.

4. The applicants have sought review of that decision and were represented in relation to the review by a registered migration agent.

5. The applicants appeared before the Tribunal on 18 October 2017 to give evidence and present arguments. 

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

8. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

   ·that are registered courses; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·for which all instruction was conducted in English; and

   ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

9. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (IMMI 09/040).

10. The applicant indicated on the visa application form that she had completed the following study in Australia: Bachelor of Nursing at Australian Catholic University (ACU) from 20 February 2012 until 11 December 2014 and Graduate Diploma in Public Health from Western Sydney University from 23 February 2015 until 5 July 2016.

11. The delegate refused the visa, finding that the Graduate Diploma qualification did not meet the Australian study requirement.

12. On review, it was submitted that it appeared that the delegate was assessing the applicant against the Post Graduate Work Stream visa requirements. It was submitted that the Graduate Diploma met the definition of degree in r.2.26AC(6). The supporting material provided included a completion letter from Western Sydney University dated 5 July 2016. In this letter it states the applicant was enrolled in the course from 23 February 2015 until 26 June 2016 and that she met all course requirements as at 5 July 2016. The Tribunal notes that the course is registered for a period of 52 weeks. The applicant therefore did not complete the course within the registered course duration. A copy of the applicant’s academic transcript was also provided, which indicates that the applicant had failed a subject in Autumn Session 2015 which was then taken in Autumn Session 2016.

13. The Bachelor of Nursing course is registered for 156 weeks duration. According to PRISMS records, the education provider had recorded the applicant as completing the course early on 23 November 2014 instead of the course end date of 31 December 2014. The date of completion set out in the academic transcript from ACU, however, is 11 December 2014.

14. At the hearing, the Tribunal discussed with the applicant her study in Australia. The applicant said that she had repeated a subject for the Graduate Diploma which she had failed because she had not submitted an assignment. She indicated that this was because of family issues at the time. The Tribunal notes that the course was not completed within the usual timeframe of 52 weeks, but this does not appear to have been an attempt to extend the period of time to complete the course in order to meet the minimum of 16 calendar months because the applicant is relying on two qualifications. On the evidence before it, the Tribunal finds that the first qualification, the bachelor degree, was undertaken over a period of more than 16 calendar months alone.

15. The Tribunal finds that the Graduate Diploma in Public Health is a “degree” as defined in r.2.26AC(6), as the entry level to the course leading to the qualification, according to the submission by the representative was “[a]pplicants must have either an undergraduate degree or master degree in any discipline or…” as required by subparagraph (a)(iv).

16. The Tribunal finds that the Bachelor of Nursing met the entry requirements set out for a bachelor degree and was not less than 3 years of full-time study. It also meets the definition of “degree”.

17. Having regard to all the evidence and material before it, the Tribunal finds that the applicant completed two qualifications in Australia, a Bachelor of Nursing and Graduate Diploma in Public Health which are both degrees as defined in r.2.26AC(6). The Tribunal finds that the courses are registered courses, being a course of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. The Tribunal finds that the qualifications were a result of courses that were completed in a total of at least 16 calendar months and as a result of at least 2 academic years (as specified) study. The Tribunal finds on the information before it that all instruction for the course were conducted in English and that the applicant held a number of student visas which authorise study throughout this period.

18. The Tribunal thus finds that the applicant satisfied Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

19. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations.

    Wan Shum
    Member